Defamation in sport – A comparison of the law in France, England and Australia

The sports world has recently seen several high profile defamation actions involving sportspersons including Spanish tennis player Rafael Nadal, former Australian rugby league player Brett Stewart and West Indies cricketer Chris Gayle. It is hard to recall three libel suits having such an impact on the sports world at the same time.

This article explores how the laws of defamation compare in England, Australia, and France. It examines key areas such as limitation periods, procedure, defences and, crucially, damages. It also demonstrates that a similar set of facts might yield a different result depending on the jurisdiction, and that claimants in England and Australia enjoy considerable benefits compared to France. Specifically, it examines:

The background to the defamation cases brought by Brett Stewart, Rafael Nadal and Chris Gale;

Limitation periods in each jurisdiction;

Strict procedural requirements in France;

Absence of a “serious harm” test in Australia;

Defences

Background

In October 2017, Brett Stewart and Rafael Nadal each initiated libel proceedings in response to allegations of professional misconduct, respectively in the Australian and the French courts.1

Stewart’s claim was based on an article published by Australian news organisation News Limited (that has now been taken down), which said he was considering a move to France following "several long conversations" with his coach about claims of match fixing against the club. This article, which was ultimately taken down, remained online long enough for the allegations to be republished on other websites, including a fan website for his former team Sea Eagles. News Limited ultimately settled, although the terms of settlement remain unknown.

In both cases it was clear that, in the context in which they appeared, the words complained of carried the meaning that the sportsmen either had engaged in activities that are illegal in the sports world, or that there were reasonable grounds to suspect that they had done so. These meanings can carry grave negative consequences on the professional reputations of the players.

However, it is not just allegations relating to the professional lives of well-known sportsmen which can negatively affect their reputation. In another set of defamation proceedings heard in the same month, West Indies cricketer Chris Gayle successfully complained in the New South Wales Supreme Court4 about an allegation that he had intentionally exposed himself to a female masseuse in a changing room.

These accusations can be deeply distressing for the athletes. An action for defamation remains the principal route to clear one’s name and secure compensation. However, the procedural and substantive rules on defamation vary from one jurisdiction to the other.

Limitation periods

In all three jurisdictions, defamation claims are subject to shorter limitation periods than most other claims, in an attempt to safeguard the fundamental right to freedom of expression. It is especially challenging in France, where the limitation period established in Article 65 of the law on freedom of the press of 29 July 1881 is drastically limited to three months, which runs from the date on which the wrongful act was committed (i.e. from the date of publication).

By comparison, in England Section 4A of the Limitation Act 19805 establishes a one-year limitation period for defamation which, pursuant to Section 8 of the Defamation Act 2013,6 runs from the date an article or statement is first published. Under section 32A of the Limitation Act 1980, the court is granted a discretionary power to disapply this limitation period where it considers it equitable to exclude that time limit (although the hurdle to convince the court to make such an order is extremely high, not least because it would be prejudicial to deprive a defendant of the benefit of his accrued defence of limitation).

But there is more. The English limitation period sets the date by which a claim form must be issued; however there is no obligation to serve the claim form on the other side immediately – this can be done up to four months from the date of issue. So a claimant may decide to issue a claim form as a preventative measure, to safeguard their position. In practice, this gives claimants an additional four months to draft detailed particulars of claim (the document setting out the case and specifying the facts relied on in support of the claim).

Even more favourable rules apply in Australia under the substantially uniform legislation enacted in all states and territories in 2005 and 2006 (the Uniform Defamation Acts).78 Although the same one-year limitation period applies, there is no equivalent to the single publication rule applicable in England (according to which a cause of action in libel accrues at the date of publication). The limitation period therefore begins not on the date of publication, but on the date an article or statement was last read. This means that a new limitation period starts to run every time material is accessed online, which effectively creates continuous liability for anything published online.

While in all three jurisdictions the limitation period is deliberately short, and the claimant is expected to bring a claim swiftly, the difference in the time limits applicable in France, England and Australia is considerable. Essentially, French rules do not allow any delay to bring a claim. Where an athlete contemplates initiating libel proceedings in France it is therefore crucial that he takes legal advice swiftly.

Procedural requirements

A more technical disadvantage which claimants face when initiating proceedings in France is the existence of strict procedural rules which have no equivalent in England or in Australia.

In France, defamation proceedings can be brought before either the civil or the criminal courts. In both cases, very specific procedural requirements apply to the issuing of a claim and to the conduct of defamation proceedings. Failure to comply with any one of these rules (whether by the claimant in the context of civil proceedings, or by the judge in the context of criminal proceedings) will render the claim void, and the very short limitation period means that it is unlikely that a fresh and procedurally compliant claim can be brought by the claimant.

As explained above, sportsmen initiating libel proceedings in France are expected to act extremely quickly after the defamatory statement is published, more so than claimants bringing a claim in England or Australia. However, they also face another considerable hurdle in that they must comply with specific procedural rules which differ from the general rules of civil procedure in France. If they fail to do so, they will be unable to plead their case, regardless of the merits of their claim. It is therefore crucial that they instruct specialist media lawyers, who have the required knowledge to navigate the intricacies of procedural rules applicable to defamation claims.

Absence of a serious harm test

The rules outlined so far have shown that the rules of procedure in England and Australia are more claimant friendly than in France. However, there also exist substantial differences between each jurisdiction’s substantive laws, which, in turn, make Australia an even more claimant friendly jurisdiction than England. In particular, the test for whether a statement is defamatory is much less stringent in Australia.

Traditionally, under the English common law of defamation, words were defamatory if they had the capacity to cause some harm to reputation, even if modest. There was no need to adduce positive evidence that some people had, in fact, understood the words to refer to the claimant and had thought less of him as a result of reading the statement complained of.

In Thornton v Telegraph Media Group,9 Tugendhat J endorsed this test but introduced a higher threshold of seriousness. The new test, which held that a meaning was defamatory if it "substantially" affected in an adverse manner the attitude of other people towards the claimant, or had a tendency so to do, was designed to exclude trivial claims10 which might constitute an unjustified interference with freedom of expression.11

Since 1 January 2014, Section 1(1) of the Defamation Act 2013 further requires that the words complained of have caused or are likely to cause serious harm to the claimant’s reputation. It was initially assumed that this section had altered the cause of action for defamation by introducing a threshold test, namely that a claimant would have to adduce evidence of actual serious harm or its probability.12 But following the recent Court of Appeal judgment in Lachaux v AOL (UK), Independent Print Ltd & Evening Standard Ltd,13 it has become clear that no such requirement has been introduced. Nevertheless, the substantial harm threshold has been raised to a serious harm threshold (with the latter conveying something "rather more weighty" than the former).14 Further, the serious harm that must be proven is serious harm to reputation, characterised by the publication itself, which must be distinguished from its consequences, characterised by the damage flowing from the reputational harm.15

By contrast, and although defamation law in Australia is derived from English common law, there is no such "serious harm" requirement in Australian law. In the Australian states and territories (all of which enacted substantially uniform national legislation in 2005 and 2006), the issue of insignificant claims is dealt with by means of a defence of "triviality".

According to the relevant provisions of the laws applicable in each state or territory,

"it is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm."

This is reportedly an extremely high hurdle for defendants to overcome, and it has only very infrequently been raised successfully.

As regards trivial claims, it is also noteworthy that the Australian courts, particularly at the appellate level, remain reluctant to adopt the English Jameel principles (which allow defendants to apply to strike out claims that may be characterised as trivial).16

Overall, the threshold for actionability of a defamation claim in Australia is therefore lower than it is in England. For the defence of triviality to succeed, a media defendant would have to prove that the claim was wholly undeserving.

This distinction can have serious consequences: despite the fact that words are plainly inaccurate and that the inaccuracy is detrimental to the proposed claimant, the differences outlined above mean that a case might succeed if it is initiated in the Australian courts, but fail if brought before the English courts.

Other defences

Having established that England, and even more so Australia, are more claimant friendly jurisdictions than France, it is surprising to find that there is a greater chance of successfully defending a claim in England and Australia than in France.

There exist three main defences to a libel claim brought before the English courts under the Defamation Act 2013:

The truth defence (Section 2)17 allows the defendant to escape liability, either fully or in part, where he can prove the substantial truth of the statement.

The defence of honest opinion (Section 3)18 protects statements of opinion which indicate the basis of the opinion and could have been held by any reasonable person on the basis of any existing facts or privileged statements published at the time the opinion was issued.

Finally, Section 419 protects "publications on a matter of public interest" where the defendant reasonably believed that there was a real public interest in the subject-matter of the published statement.

In addition, some statements are considered to be privileged and as such are not actionable; and a specific defence is available to defendant website operators, who are not liable for statements published on their website by an identifiable third party, unless they acted maliciously.

An equally wide range of defences is available to those who defend a defamation claim in Australia.

By contrast, in France there only exist two main defences to a defamation claim. Absent any privilege, the defendant can only escape liability by proving that he was allowed to publish the statement by establishing its truth or that he made it in good faith.

The practical importance of the defence of truth is relatively limited as it cannot be relied on in relation to statements concerning the claimant’s private life, and it is (again) subject to very strict procedural rules. The defence most frequently relied on by defendants is therefore that of good faith. This resembles the English Section 4 defence in that it is based on the defendant’s legitimate duty or interest in making or receiving the statement. The defendant must prove not only the public interest of the statement complained of, but also three additional elements: a lack of personal animosity; caution and moderation in the words complained of; and the reliability of the investigation preceding publication of the alleged defamatory statement.

In addition, the criteria for assessing the defence of good faith have evolved under the influence of cases brought before the European Court of Human Rights, and nowadays focus primarily on the public interest in making the statement and on the existence of a sufficient factual basis to make the statement.20 While these criteria appear to be more flexible than those which apply in the context of the defence of truth, they are very subjective and their application will vary depending on the judge examining the claim.

It is therefore clear that the defences available under the French law of defamation are more difficult to rely upon than those available in England and in Australia. However, the limited scope of the defences available in France is not enough to make that jurisdiction claimant-friendly.

Damages

The quantum of damages that can be awarded by way of compensation in defamation claims differs considerably from one jurisdiction to the other. In all three countries, the award is designed to compensate the claimant for the damage to their reputation, vindicate their good name, and take account of the distress, hurt and humiliation which the publication has caused. The successful party can also recover a proportion of their opponent’s costs. Yet the English courts, and even more so the Australian, are considerably more generous than their French counterparts.

In the French courts, the damages awarded even for the most serious allegations (such as sexual misconduct) rarely reach six-figure sums, and recoverable costs are typically limited to a few thousand euros. Nadal’s claim for €100,000 therefore appeared to be in the top bracket of defamation damages, and while the Paris court of first instance gave judgment for him, he was ultimately only awarded €10,000.

Damages awards are typically higher in England. There exist various heads of damages which can be awarded in addition to the compensatory award, including special damages (for actual monetary loss suffered by the claimant as a result of the publication), aggravated damages (where the conduct of the defendant has increased the subjective hurt suffered by the claimant) and, in exceptional circumstances, exemplary damages (which are intended to punish the defendant and to deter outrageous conduct). It is recognised that "to a large extent each case turns on its own facts",21 but some guidance on quantum can be found in the case law.

The Court of Appeal in Cairns v Modi22 referred to a ceiling figure in the order of £275,000. Since the Defamation Act 2013 has come into force, the awards have been more modest, but in a recent case the High Court awarded a claimant £185,000.23 This is admittedly quite a substantial sum, which is exclusive of the winning party’s costs, a proportion of which remains payable by the losing party. These costs usually far exceed the damages award itself.

Yet a recent case24 brought by Australian actress Rebel Wilson has revealed that the English damages awards are by no means comparable to those available in Australia. Wilson’s legal representatives recently secured a record award of A$4.5 million (£2.7 million) in the Supreme Court of Victoria against Bauer Media, who had alleged that she had "invented fantastic stories [about her background] in order to make it in Hollywood".25 This astonishing award, which covered both general damages and special damages, is currently on appeal. Nevertheless, it gives an indication of the level of compensation that Australian judges are prepared to award to those who they consider to be deserving claimants.

Conclusion

Taken as a whole, it is apparent that English, Australian and French defamation laws differ considerably from one jurisdiction to another. The conduct and the outcome of libel proceedings will therefore directly depend on where they are brought. Yet, litigation cannot be freely pursued in just any jurisdiction of the claimant’s choice. Specific rules exist to determine the appropriate forum for the trial of the action, depending on where the publisher is based, where publication took place and whether the claimant has any connection with the country in which proceedings are brought.

Wherever in the world an athlete may be, defamatory allegations can have a potentially disastrous effect, particularly when they relate to their professional reputation. Bringing a claim can be essential if they are to clear their name and secure compensation. It is equally important, in the early stages following publication, to secure the removal or amendment of the article itself and to request the publication of a prompt apology, both of which go a long way in mitigating the reputational harm caused by a defamatory statement.

The author wishes to thank Nigel Tait, Managing Partner and Head of Media Law at Carter-Ruck, and Vincent Toledano, Avocat au barreau de Paris, for their helpful comments on this article.

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About the Author

Mathilde is a Legal Adviser in Carter-Ruck’s Media Litigation group. She has assisted on various defamation cases representing claimants and defendants, individuals and corporations, including on the first trial concerning the issue of serious harm in the Defamation Act 2013.